Cite as: In the Matter Larry J. Comfort v. New York State Board of Parole et al., 514995, NYLJ 1202582630241, at *1 (App. Div., 3rd, Decided December 20, 1989)

Before: Mercure, J.P., Spain, Malone Jr., Stein and McCarthy, JJ.

Decided: December 20, 2012

ATTORNEYS

For Appellant: Paul, Weiss, Rifkind, Wharton & Garrison, LLP, New York City, Jesse S. Crew of counsel and David Crow, Legal Aid Society Criminal Appeals Bureau, New York City.

For Respondents: Eric T. Schneiderman, Attorney General, Albany, Frank Brady of counsel.

MEMORANDUM AND ORDER

 

*1

 

Appeal from a judgment of the Supreme Court (Breslin, J.), entered May 9, 2012 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent Board of Parole denying petitioner's request for parole release.

MALONE JR., J.

Petitioner is currently serving an aggregate prison term of 20 years to life as a result of his 1982 convictions for criminal sale of a controlled substance in the first degree and criminal possession of a controlled substance in the first degree, as well

 

*2

 

as a consecutive sentence of 1½ to 3 years stemming from his subsequent conviction of attempted escape in the first degree. In June 2011, petitioner made his most recent appearance before respondent Board of Parole, whereupon his request for parole was again denied and the Board ordered him held for an additional 18 months. After petitioner did not receive a timely response to his August 2011 administrative appeal, he commenced this CPLR article 78 proceeding challenging the Board's determination. Supreme Court dismissed the petition and this appeal ensued.1

The Board's decision whether to grant discretionary release is "deemed a judicial function and shall not be reviewable if done in accordance with the law" (Executive Law §259-i [5]). "Judicial intervention is warranted only when there is a showing of irrationality bordering on impropriety" (Matter of Silmon v. Travis, 95 NY2d 470, 476 [2000] [internal quotation marks and citation omitted]). Here, the record reveals that the Board, in making its decision, considered the appropriate statutory factors in denying petitioner's parole request (see Executive Law §259 — i [2] [c]), including the seriousness of petitioner's crimes, positive educational and program achievements while incarcerated, his exemplary prison disciplinary record and plans after release. However, the Board also specifically noted that it considered the "significant opposition to [petitioner's] release." Apparently, this opposition was in the form of letters that were submitted in response to a solicitation made by the State Troopers Police Benevolent Society, which incorrectly claimed that petitioner was criminally liable for his brother's shooting of a police officer. Given this misrepresentation regarding petitioner's convictions, and it appearing that the "significant" letters in opposition to petitioner's release were prompted by the erroneous characterization of petitioner's conviction, it was error for the

 

*3

 

Board to credit those tainted letters.2 Accordingly, in view of the fact that the Board placed particular emphasis on these letters in denying petitioner's release on parole, the judgment must be reversed and a new hearing granted (see e.g. Matter of Lewis v. Travis, 9 AD3d 800, 801 [2004]).

Mercure, J.P., Spain, Stein and McCarthy, JJ., concur.

ORDERED that the judgment is reversed, on the law, without costs, determination annulled and matter remitted to respondent Board of Parole for further proceedings not inconsistent with this Court's decision.

1. Although 18 months have elapsed since petitioner's last appearance and he is eligible to reappear before the Board, his request that his reappearance be deferred until April 2013 was granted.

2. Although a representative from the Board informed petitioner that any erroneous information would be redacted prior to their submission to the Board, no letters of opposition — redacted or otherwise — were submitted to this Court for review.